Ivan Esparza v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00044-CR

Ivan Esparza,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # F35123

MEMORANDUM Opinion

Appellant, Ivan Esparza, was indicted on June 13, 2001, of “Unlawful Possession of a Firearm by a Felon” and “Aggravated Assault-Deadly Weapon.”  Prior to trial, the State abandoned the aggravated assault count. Esparza was tried before a jury and was found guilty of unlawful possession of a firearm by a felon.  The trial court assessed punishment at ten years’ confinement in prison.

          Esparza brings six issues on appeal: (1) Whether the trial court erred in admitting Esparza’s videotaped statement into evidence; (2) Whether the trial court denied Esparza’s rights under the Vienna Convention Treaty; (3) Whether the trial court erred in denying Esparza’s request for a jury charge on the defense of necessity; (4) Whether the trial court violated Esparza’s right to counsel; (5) Whether the trial court’s admission of Esparza’s videotaped statement rendered defense counsel’s representation ineffective; and (6) Whether the evidence was factually sufficient to support a finding that Esparza possessed a firearm.

We will overrule each of Esparza’s issues and affirm the judgment.

BACKGROUND

          On May 22, 2001, the Johnson County Sheriff’s Office received a request from Tarrant County Sheriff’s Office for help in locating a vehicle.  Police in Johnson County identified the vehicle and began a chase.  Celia Vasquez (Esparza’s wife) was the driver of the vehicle, and Esparza was a passenger. As Vasquez pulled into a restaurant drive-thru, the police observed Esparza holding a gun and pointing it at Vasquez.  Vasquez sped off after the police instructed her to turn off the engine and instructed Esparza to drop the gun and exit the car.  After a high speed chase, the police stopped Vasquez and Esparza. Vasquez jumped out of the car and ran, but was shortly overtaken by an officer.  Esparza was taken from the car and arrested.  A Glock .45 caliber handgun was found on the passenger floorboard where Esparza had been sitting.

Videotaped Statement

          Esparza contends that the trial court abused its discretion by ruling that a video interview with him was admissible evidence.  He claims that he did not expressly waive his Miranda rights and therefore the video statement should not have been admitted.  In reviewing a trial court’s decision on a suppression motion, we afford almost total deference to the trial court’s application of law to fact questions. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

The admissibility of a video statement is determined under article 38.22 section 3 of the Criminal Procedure Code.  Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon 2004).  The statute provides that no oral statement of an accused made as a result of custodial interrogation is admissible unless an electronic recording is made of the statement, the accused is given his statutory warnings prior to his statement, and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.  Id.  The trial court found that Esparza prior to and during the making of the statement knowingly, intelligently, freely, and voluntarily waived each of the rights set out in the warnings and that article 38.22 was complied with fully.

          It is undisputed that the statutory warning was given and recorded prior to Esparza’s videotaped statement.  He was asked if he understood his Miranda rights; he indicated that he did and signed the back of the Miranda card.  He contends, however, that he never expressly waived any of the rights contained in the statutory warning.  The oral confession statute does not require that a recorded statement contain an express statement by the accused that he waives his rights prior to making a statement.  Etheridge v. State, 903 S.W.2d 1, 16 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 920, 116 S. Ct. 314, 133 L. Ed. 2d 217 (1995); Barefield v. State, 784 S.W.2d 38, 40-41 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1011, 110 S. Ct. 3256, 111 L. Ed. 2d 766 (1990).  We find no error in the trial court’s finding that Esparza waived his rights and made his statement knowingly, intelligently, and voluntarily.  We overrule his first issue.

Vienna Convention Treaty

          Esparza, an arrested foreign national, claims that the trial court violated his rights under the Vienna Convention on Consular Relations by failing to grant sua sponte the right to contact his consulate without delay.  We need not decide the merits of this complaint, however, because Esparza failed to preserve the issue for appeal.  Tex. R. App. P. 33.1.  Rule 33.1 requires that the record show the complaint was timely made to the trial court, the grounds were stated with specificity, and a ruling was obtained.  See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).  Esparza did not complain of the violation until appeal.  The complaint was therefore waived.  See id.  We overrule the second issue.

Defense of Necessity Jury Instruction

          Esparza contends that the trial court abused its discretion in denying his requested jury charge on the defense of necessity. Upon timely request, a defendant has a right to an instruction on any defensive issue raised by the evidence, regardless of whether the evidence is weak or contradicted.  Darty v. State, 994 S.W.2d 215, 218 (Tex. App.—San Antonio 1999, pet. ref’d).  A defendant is entitled to the instruction if defendant produces evidence raising each element of the requested defense.  See Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).  If a defensive issue is raised by a party, refusal to submit the requested instruction is an abuse of discretion.  See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993).  However, where the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction.  See id.

          The defense of necessity is available for criminal conduct if (1) the defendant reasonably believes his conduct is immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.  See Tex. Pen. Code Ann. § 9.22 (Vernon 2003).

          The State argues that the evidence failed to raise a necessity defense.  We agree. Although the record reflects that defense counsel hoped to establish a scenario wherein Esparza or Vasquez needed a gun to protect Vasquez from a drug dealing boyfriend named Rodolpho, the defense failed to present evidence to support the theory.  Neither Esparza nor Vasquez testified at trial.  As evidence of necessity, Esparza cites only to the testimony of law enforcement officers.  Detective Mackey testified that Esparza told him that Vasquez was the one who wanted the gun and that Esparza told him that it had to do with money and with Vasquez’s boyfriend.  The detective also testified that Esparza told him that the boyfriend was on probation for drugs and that Vasquez needed thousands of dollars.  Officer Scarbrough testified that Esparza told him that Vasquez was the one that wanted the gun.  The record reveals no evidence that Rodolpho existed or that Rodolpho had threatened either Vasquez or Esparza.   There is no evidence in the record that there was a threat of harm, imminent or otherwise, or that Esparza reasonably believed there was a threat of imminent harm.

          Because the evidence did not raise the defense of necessity, we conclude that the trial court did not error in refusing the instruction.  We overrule the third issue.

Right to Counsel

          Esparza contends that due to the trial court’s cumulative rulings regarding (1) the videotaped statements, (2) Vienna Convention Treaty rights, and (3) the defense of necessity jury charge, he was effectively denied his right to counsel.  The State argues and we agree that he has failed in his brief to cite any legal authority or make any legal argument in support of his position.  Therefore, we overrule issue four.  Tex. R. App. P. 38.1(h).

Ineffective Representation by Counsel

          Esparza contends that due to the trial court’s admission of the videotaped statements, his counsel was forced to be ineffective. This issue is predicated on error in the court’s ruling concerning the videotaped statement.  Because we have found that the statement was properly admitted, we also overrule this issue.

Factual Sufficiency

          Esparza contends that the evidence was factually insufficient to support the jury’s guilty verdict.  There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004). However, there are two ways in which the evidence may be insufficient.  Id.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, there may be both evidence supporting the verdict and evidence contrary to the verdict.  Id.  Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.  Id.  This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.  Id.  Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under the beyond-a-reasonable-doubt standard.  Id.

          Zuniga also reminds us that we must defer to the jury’s determination.  See id. at *3 (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)).  The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.”  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case.  Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).  The evidence is not factually insufficient merely because the factfinder resolved conflicting views of evidence in favor of the State.  Cain, 958 S.W.2d at 410.

          The elements of Unlawful Possession of a Firearm by a Felon applicable here are: (1) a person (2) who has been convicted of a felony (3) possesses (4) a firearm (5) after conviction and before the fifth anniversary of the person’s release from confinement following the felony.  Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2004). Esparza does not challenge that at the time of the offense he was a person who had been convicted of a felony within the five-year rule.  The evidence established that he was convicted of the felony offense of Unauthorized Use of a Vehicle and that the date of the charged offense was within five years of his release from confinement for that felony.

Rather, Esparza contends that the evidence was factually insufficient to prove that he possessed a firearm.  He contends that the testimony of one of the State’s witnesses was inconsistent.  Officer Redding testified that from his vehicle he saw through Vasquez’s rear window “a large frame handgun, automatic, in the front seat between the two of them [Vasquez and Esparza] which was pointed in her direction.”  Esparza contends that it would be impossible for the officer to see a handgun “in the front seat” without exiting his vehicle. However, Redding’s further testimony reveals that what he saw was not a handgun lying in the front seat, but rather Esparza holding the handgun and that he saw the handgun through the space between the bucket seats.  Redding’s testimony has no inconsistencies that would preclude a jury from finding his testimony credible.  Further, the State presented other evidence that Esparza was in possession of the handgun. In his videotaped statement, Esparza admitted that he purchased the handgun the night before.  After Esparza was arrested, the handgun was found on the floorboard on the passenger side where he had been sitting.

We do not find that the evidence is factually insufficient to support the verdict.  We overrule this issue.

CONCLUSION

          Having overruled all of Esparza’s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed September 8, 2004

Do not publish

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